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Stopping Leaks---A Good First Step

Tuesday, July 03, 2012
By: Joe Mazzafro

When we left off in June we were discussing the implications of the New York Times’ [not so] Secret Kill List article of 29 May about how the President singularly decides who will be targeted for termination by CIA launched drone strikes and how he alone can give the execute order.  What I offered for your consideration was a discussion about whether these drone strikes could be justified under generally accepted Laws of War and even more importantly whether or not they were effective in making the United States safer.  After almost a month long barrage of media reporting only staunched by the Supreme Court Decision upholding the Affordable Care Act on June 28th, I now understand the real interest in this story is the debate about whether it was leaked to effect presidential electoral politics or not.  Wow did I miss that! 

Since I have no facts one way or the other I will steer clear of offering my opinions about how this Kill List story was developed, but you don’t need me to tell you stopping national security leaks came to dominate national news stories in June when the New York Times subsequently ran a story on cyberweapons linking the U.S. to the development of the Stuxnet malware used to impede the operation of Iranian nuclear enrichment centrifuges.  Then a June 14 front page above the fold Washington Post headline announcing “US EXPANDS SECRET INTELLIGENCE OPERATIONS IN AFRICA” pushed official Washington from the White House to the Capitol to Liberty Crossing into expressing outrage about the leaking of classified information and proposing policies and legislation to punish current leakers with the goal of deterring future unauthorized disclosures of classified material. 

Moving proactively to firewall the Intelligence Community (IC) from being singled out as the source of these damaging disclosures, Director of National Intelligence (DNI) James Clapper announced two significant policy actions on June 25 that will in his words “. . . reinforce our professional values by sending a strong message that intelligence personnel always have, and always will, hold ourselves to the highest standard of professionalism.”

·         A specific question related to the unauthorized disclosure of classified information will be added to the counterintelligence (CI) polygraph administered to all IC members with high security clearances

·         The IC Inspector General will conduct independent investigations of selected unauthorized disclosure cases when prosecution is declined by the Department of Justice (DOJ)

In a challenge to the rest of the government with access to sensitive classified information the DNI said “it is my sincere hope that others across the government will follow our [the IC’s] lead.” (http://www.dni.gov/press_releases/Director%20Clapper%20Announces%20Steps%20to%20Deter%20and%20Detect%20Unauthorized%20Disclosures.pdf)

House Permanent Select Committee on Intelligence (HPSCI) Chairman Mike Rogers immediately called these two DNI policies “a good first step” for dealing with the leaking of classified information while Congress pursues drafting legislative language  for the FY 13 Intelligence Authorization Bill for cracking down on the disclosure of classified information to reporters  (http://intelligence.house.gov/press-release/statement-chairman-rogers-director-clapper%E2%80%99s-announcement-steps-deter-and-detect-leaks).

I support and applaud DNI Clapper’s forthright position that if leaks of classified information are coming from the IC, perpetrators will be searched out and when found held accountable through administrative means when prosecution is not an appropriate or viable option.  As the DNI recommends, it is prudent that such a self policing/self regulating approach be adopted by other department and agency heads across the national security landscape of the federal government.  Conversely, I am concerned about what legislative remedies Chairman Rogers would add to the DNI’s “good first step” since there is a delicate balance in the information age between protecting secrets for security reasons and sharing secrets to create decision superiority for officials at all levels of government.  Speaking at the Center for Strategic and International Studies (CSIS) event during the last week of June, Director of the National Counterterrorism Center (NCTC) Matt Olsen observed that the challenge for the federal government is to find a way to prosecute the leaks and prevent future ones but also to “guard against a reaction that would limit [authorized mission driven] information sharing. 

I’ve got to believe, however, that if preventing the disclosure of classified information to the press was easy there wouldn’t be many if any leaks for us to worry about.  As a matter of principal there will always be those in a democracy like ours that will contend with some justification that what the government keeps secret from its citizens should be severely limited.  Others will question when does reporting potentially inappropriate or illegal government activities that are classified morph from “whistle blowing” to “leaking?”  What are the chances people will be wrongly suspected for leaking media reporting about classified matters that are actually sourced by foreign security services or developed by investigative journalism from a myriad of information now available in the public domain? Then there is the authorized leak to test reaction to a particular course of action or to mislead an adversary.  What is the right balance between “need to know” and “need to share?”  Can closed session testimony to Congress be construed as unauthorized disclosure of classified information?  Finally there is the muddled case law about when the media can be held to task for publishing classified information or if it can be forced to reveal its sources for classified information.

Each of these situations could be expanded into lengthy dissertations as to why (in my view) the Congress going beyond the DNI’s use of polygraph questions and administrative investigations to deter leaking to the press would result in law that would be both inconsistent and ineffective.  While it is emotionally gratifying to demand leakers be prosecuted and sentenced to prison, proof beyond a reasonable doubt in these types of cases has been historically elusive.  Ergo it is more beneficial for national security to focus on remedies that actually stop leaks rather than seeking punishment for the leakers.

That’s what I think; what do you think?

Comments

While I agree that the DNI's new rules will both help shield the Community and set an example for other agencies, I think the new rules will have a chilling effect on relationships with members of the press. I can just imagine what the poly question will be like and how the qualification and limiting discussion will be between the polygraphers and subject will be. Maybe the best approach is not to engage the press, period, but is that what we really want? Is that good for our political system?

I personally do not believe the leaks came from the IC, but rather from pretty high levels in the NSC and DOD/AFRICOM/JSOC, the latter being POM motivated. But, I don't really know. This is all the more reason we need to conduct investigations, to include the use of Polys:"Did you leak information to the NYT, etc on xxxxx."

By John Casciano

John thanks! I was happy to see in the DNI announcement that the poly question would deal with unauthorized disclosures vice initial reports that a question would be added about disclosures to reporters. Maybe a difference without a distinction as its pretty obvious that there is a desire to control if not eliminate cleared people talking to reporters. I share your concern that if informed people stop talking to reporters then they will be left to report what uninformed people tell them about the IC. Not sure how this is good for national security. As I touched lightly on in my blog remarks I firmly believe that all government information belongs to the people, but in their wisdom the people through there representatives have authorized that some of this information be classified to protect the nation's security and those actually protecting that security. Then there is the role reporters play as information conduits between adversaries and the IC. How does the Cuban Missile Crisis play out if ABC's John Scali is not back channelling to the Kremlin for the White House?!?!? joemaz

By Joemaz

Joemaz,I think, like you, it was always clear that allowing classified information to be left unguared and available for uncleared folks to have access was a career-ending mistake. That was drilled into me as an RPS custodian during my Ensign/LTjg years and during the rest of my career as a cryptologist. The rules have to stay simple and the consequences have to be severe. Nobody is exempt.

By IVAN

Roger Ivan simple, clear, and enforceable

By Joemaz

Joe, this isn't contentious issue and a number of good points have been made. I think DNI's actions are important but I hope it does not evolve into a reign of terror witch hunt which would damage IC relationships with the press, as Gen Casciano notes. In my brief experience on the IC staff most of the leaks, intentional or inadvertent came from Congress. The inculcation of security needs and practice is not deep there... This also argues against Congress creating new laws to address this issue not only because many of them don't understand the issues, but they also exempt themselves and staffers from the laws they pass so it won't help stopping leaks from that source. I recommend a book "Necessary Secrets, National Security, the Media and the Rule of Law" by Gabriel Schoenfeld 2010, Norton Press for a thoughtful look at this problem

By Frank White

Frank thanks. I agree about the danger of whitch hunt here and I see the actions directed by the DNI as being as minimal as could be taken given the circumstances.

I start from the premise that all government information belongs to the people so burden of justifying why information should be classified is the government's to meet. More pracmatically nothing hurts all source analysis more than "need to know"

Finally I about half through CONFRONT and CONCEAL the sources for the information revealed in this book are predominantly high ranking government officials vice intelligence professionals working in the trenches or working at the point of engagement

joemaz

By Joemaz

http://www.govexec.com/defense/2012/07/gop-lawmaker-national-security-le...

I respect and admire HPSCI Chairman Rogers but I have trouble seeing current wave of leaks as the worst ever in US history. Certainly the Pentagon Papers is in the same league. I remember shuttering when reading about Navy Special Submarine Ops in the New York Times circa 1973 and what that meant for the safety of the crews. In the 60's and 70s it seems that Drew Pearson and then Jack Anderson were publishing information from raw intelligence reports almost weekly joemaz

By joemaz

R, Joe, first to clarify, I meant it IS a contentious issue vice ISN'T (a bit too much help from apple's auto suggestions) and I concur strongly on "need to know" as an inhibitor to information sharing and all source analysis , it was a major issue with INTELINK. Increasing NTK restrictions and leaks "witch hunts" hurts the people who need the shared data and info; the intel professionals doing the work, who as has been repeatedly demonstrated are not sources for the leaks, but seldom touches the high level legislative and executive branch leakers. New laws and NTK regulations are often counter productive as they create an atmosphere of fear in which IC professionals suffer and importantly lead reduced sharing and interaction and the quality of our products decline.

By Frank White